Bunny's Cabaret, LLC v. Pinellas County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BUNNY’S CABARET, LLC,

Plaintiff,

v. Case No: 8:23-cv-2534-CEH-NHA

PINELLAS COUNTY,

Defendant.

___________________________________/

ORDER

This matter comes before the Court on Plaintiff Bunny’s Cabaret, LLC’s

Motion for Preliminary Injunction (Doc. 16). In the motion, Bunny’s Cabaret seeks a

preliminary injunction enjoining enforcement of Sec. 6-29 of the Pinellas County

Code. Defendant Pinellas County has responded in opposition. Doc. 21. The Court

heard argument on the motion on February 13, 2024, and conducted an evidentiary

hearing on April 2, 2024. Having carefully considered the motion and response, the

parties’ exhibits, the witnesses’ testimony, heard argument of counsel, and being

otherwise fully advised in the premises, the Court will deny Plaintiff’s Motion for

Preliminary Injunction.

I. BACKGROUND

A. Factual Background

Plaintiff, Bunny’s Cabaret, LLC (Plaintiff or “Bunny’s”) opened in March 2020

originally as a “Gentlemen’s Club” with a beer and wine license. Doc. 1-1 ¶¶ 13, 14.

At some point later, Bunny’s obtained a full liquor license, which it used in compliance

with restrictions pertaining to “adult uses.” Id. ¶ 15. On November 15, 2021, Bunny’s

gave up its liquor license and obtained a bottle club license to facilitate its goal of

presenting late-night entertainment. Id. ¶¶ 16–19; see Doc. 1-1 at 25–26. A “Bottle

Club” is a commercial establishment that operates for profit where patrons can

consume alcohol brought on the premises but not purchased there. Doc. 21 at 3; Doc.

1-1 at 25–26. Bunny’s has a policy in place that during the hours from 3:00 a.m. to

8:00 a.m., possession or consumption of alcohol on the premises is prohibited. Doc.

1-1 ¶ 18. This policy is posted throughout the building. Id.; Doc. 16-1 at 2.

Currently, Bunny’s operates as an entertainment venue in Pinellas Park where

local musical and R&B artists come together to perform on stage before a live

audience. Doc. 1-1 ¶ 19. Bunny’s describes the late-night characteristics of its

entertainment to convey not just the music but also as an expression and

communication of non-conformity, energy, rebelliousness, and stamina. Doc. 16-1 at

2; Doc. 16-2 at 2.

Throughout 2023 from February through September, Bunny’s received citations

from the Pinellas County Sheriff’s Office (“PCSO”) for violations of Section 6-29 of

the Pinellas County Code. Doc. 1-1 ¶¶ 20–29. Section 6-29 mandates, in relevant part,

the closing of all business establishments “dealing in alcoholic beverages” from the

hours of 3:00 a.m. to 8:00 a.m. on each day of the week. Bunny’s was ordered to close

by the PCSO, and Bunny’s acting manager was cited for violations of the Pinellas

2

County Code Sec. 6-29 on February 19, 2023; March 4, 2023; May 6, 2023; June 4,

2023; June 10, 2023; August 19, 2023; August 25, 2023; August 26, 2023; August 31,

2023; and September 2, 2023. See Doc. 1-1 ¶¶ 19–29; see also Doc. 1-1 at 27–35.

Bunny’s seeks injunctive relief, arguing Sec. 6-29 is unconstitutional because it

prohibits free exercise of speech, freedom of association of “like-minded” individuals,

and free presentation of artistic expression, which includes being able to present artistic

performances between the hours of 3:00 a.m. and 8:00 a.m., which is an essential

component of the “late night” entertainment. Doc. 16.

B. Procedural Background

In September 2023, Bunny’s brought this action, under 42 U.S.C. § 1983, in

state court against Defendants Pinellas County (Defendant or “Pinellas County”) and

Bob Gualtieri (“Gualtieri”), in his official capacity as Sheriff of PCSO, for alleged

violations of First Amendment, equal protection and due process rights, and the

companion provisions of the Constitution of the State of Florida. Docs. 1-1, 1-2.

Bunny’s filed its Amended Complaint on October 25, 2023 (Doc. 1-1), and Defendant

Gualtieri removed the suit to federal court on November 6, 2023 (Doc. 1). Defendant

Pinellas County consented to the removal. Doc. 9. On November 20, 2023, Bunny’s

voluntarily dismissed Gualtieri from the suit pursuant to Fed. R. Civ P. 41(a)(1)(A)(i).

Doc. 15. According to its filings, Bunny’s dismissed the Sheriff from this action based

on the Sheriff’s confirmation that any ruling from this Court enjoining the challenged

legislation would be honored by the Sheriff. Doc. 16 at 2, n.1.

3

On November 29, 2023, Bunny’s filed the instant Motion for Preliminary

Injunction. Doc. 16. Pinellas County responded in opposition. Doc. 21. The Court

heard argument on the motion initially on February 13, 2024. Doc. 29. At the hearing,

it became apparent that disputed issues of fact existed. Accordingly, the Court

scheduled an evidentiary hearing, which took place April 2, 2024. Docs. 33–37.

C. Testimony and Evidence Presented at Evidentiary Hearing

Plaintiff presented the testimony of three witnesses at the hearing. Defendant

did not offer any witnesses, but presented the body camera footage taken from officers

who had cited Bunny’s for Pinellas County ordinance violations and who directed

Bunny’s to close at 3:00 a.m.

1. Jason Tanner

Bunny’s owner, Jason Tanner, runs the day-to-day operations for the business,

which started in 2020 initially as a Gentleman’s Club. Ultimately, Bunny’s shifted

business models finding a need and interest for late night entertainment for clientele

after 3:00 a.m. who were interested in keeping the celebration going. He testified that

many artists who also work in the service industry are unable to present their music

because venues are not open when they get off work. Bunny’s is currently operating

Thursday through Sundays. It closes at 3:00 a.m., under protest, until this dispute is

resolved.

Tanner stated that there is something liberating to be able to extend your night

past 3:00 a.m. He claims it’s unique because there is a different energy and lack of

4

pressure at that late hour, an element of rebelliousness, stamina, and emotional

celebration. Many of the artists who perform during the late hour are new performers

who are presenting experimental shows. Being able to perform after hours increases

the acceptance of these performances. There is no exact time that makes performances

after 3:00 a.m. better, but the performers during these late hours usually do not have

other opportunities to perform before 3:00 a.m. Tanner is the one who decides who

performs at Bunny’s, and he acknowledged that these artists have been permitted to

perform at Bunny’s both before and after 3:00 a.m.

Tanner further testified that Bunny’s operated without incident under this

format of staying open past 3:00 a.m. up until about a year ago when, in approximately

March 2023, PCSO officers began showing up and demanding that Bunny’s close at

3:00 a.m. per Pinellas County ordinance.

Although it had a bottle club license, Bunny’s had a policy in effect that no

alcohol was permitted after 3:00 a.m. According to Tanner, Bunny’s would diligently

enforce the policy by announcing it and then have floor and security staff walk the

crowd to ensure patrons threw out their alcohol or left the premises. Tanner

acknowledged that there was a way to get alcohol into Bunny’s if a customer really

wanted to, but if any Bunny’s staff saw it, they would request it be thrown out or ask

the patron to leave.

5

Tanner indicated that Bunny’s does not offer adult entertainment, but it does

have dancers. He described the dancers as more of a “Go-Go” atmosphere, nothing

sexually explicit. The performers include DJs, singers, rappers, and comedy acts.

2. Cody Hamel

Cody Hamel is the general manager for Bunny’s, and he has been in this

position for three months. He testified that Bunny’s is currently not open past 3:00

a.m. because it is waiting for permission. He did not work at Bunny’s when it was

open past 3:00 a.m.

3. Gamaliel Bosques

Gamaliel Bosques has worked as a DJ at Bunny’s for the past two years. He

also works as a manager and security, as needed. He worked for Bunny’s when it was

an adult entertainment establishment previously, but then the crowd changed and the

patrons were looking for a late-night establishment where they could keep the party

going all night long.

Most clubs only allow DJs to play certain music—“Top 40”-type songs. At

Bunny’s, however, DJs can play whatever they want. Being open past 3:00 a.m. allows

Bosques to get experimental with his music. He described Bunny’s as the spot to get

your music out there if you’re a new artist. Bunny’s gives local talent the opportunity

to perform. At Bunny’s, Bosques has the same discretion to play the experimental

music he wants to play both before and after 3:00 a.m. He testified that the time of day

does not affect the message of the music.

6

The patrons who come to Bunny’s for the late-night entertainment are primarily

hospital and service workers who work until 3:00 a.m., and Bunny’s gives them a place

to go when they get off work. It also gives those people who go out in downtown, who

have the party mentality, a place where they can keep the party going.

Bosques serves many roles for Bunny’s besides DJ, including floor guy, money

manager, and supervisor of alcohol. When Bunny’s was open past 3:00 a.m., Bosques

would announce at 2:45 a.m. that the business was switching to “after hours.” Floor

guys would patrol the establishment at 3:00 a.m., telling patrons to get rid of their

alcoholic drinks or to leave. He acknowledged, however, that the floor guys would not

be smelling cups to make sure there was no alcohol in them.

4. PCSO Body Camera Footage

At the hearing, Defendant submitted body camera footage obtained from the

PCSO. Plaintiff submitted excerpts of the same body camera footage. Although no

witnesses were brought to testify regarding the videos, the parties stipulated to the

admission of the videos.

Defendant submits that the videos clearly shows alcohol consumption in

Bunny’s after 3:00 a.m. It was apparent from the videos that there were cups littered

throughout the business and at least one bottle of alcohol was visible on the video at a

table in Bunny’s after 3:00 a.m. Additionally, a patron commented about how much

7

he was charged for a drink. One of the officers found it curious that Bunny’s security

insisted that no cups leave the building, but supposedly the cups only contained juice.1

D. Motion for Preliminary Injunction (Doc. 16) and Response (Doc. 21)

Bunny’s moves for entry of a preliminary injunction, seeking to enjoin the

County and its agents from enforcing the 3 a.m. to 8 a.m. closure effected by Sec. 6-29

on the basis that the legislation is unconstitutional. Doc. 16. In support of its request

for injunctive relief, Bunny’s submits that it satisfies the four elements necessary to

obtain an injunction. First, Plaintiff argues it has a substantial likelihood of prevailing

on the merits because the challenged legislation (Section 6-29) is unconstitutional

because it: (a) was adopted without evidentiary support; (b) contains terms that are

unconstitutionally vague and overly broad; (c) is not rationally related to a legitimate

government interest, nor does it advance any legitimate government interest; (d)

violates the equal protection and due process clauses of the United States Constitution

and Florida’s Constitution; and (e) violates the First, Fifth,2 and Fourteenth

Amendments of the United States Constitution and the corresponding provisions of

Florida’s Constitution. Doc. 16 at 16–17.

1 Jason Tanner testified that the purpose of throwing out the cups before patrons left the

building was to prevent the cups from being discarded in the parking lot and making a mess.

2 According to the Amended Complaint, the Fifth Amendment challenge is predicated on the

Pinellas County Ordinance being an unlawful taking of private property. Bunny’s Fifth

Amendment challenge as a basis for injunctive relief is wholly undeveloped on the instant

motion, and thus the Court need not address it. See, e.g., Resol. Tr. Corp. v. Dunmar Corp., 43

F.3d 587, 599 (11th Cir. 1995) (holding that the onus is upon the parties to formulate

arguments and “[t]here is no burden upon the district court to distill every potential argument

that could be made based upon the materials before it”).

8

Second, Plaintiff argues that it has been irreparably harmed because a loss of

First Amendment freedoms constitutes an irreparable injury. Id. at 22–23. Third,

Plaintiff argues that a violation of First Amendment freedoms outweighs the

government’s enforcement of an unconstitutional statute. Id. at 23. Fourth, Plaintiff

submits that protecting constitutional rights is always in the public’s interest. Id. In

support of its motion, Bunny’s proffers declarations from performers and its owner to

attest to the need for and importance of the distribution and consumption of late-night

entertainment. See Docs. 16-1, 16-2, 16-3, 16-4.

In response, Pinellas County argues that Bunny’s is unable to meet its burden

of establishing a likelihood of success on the merits of its constitutional challenges, and

thus it is not entitled to the extraordinary and drastic remedy of an injunction. Doc.

21 at 6–7. Pinellas County rebuts Bunny’s argument that there is no legislative

predicate or evidentiary support for the legislation by presenting transcripts of County

Board Meeting notes regarding the applicable ordinances (Doc. 21-9). Pinellas County

next argues the provision is not vague or overbroad as a plain reading of the statute

identifies exactly what is a covered business establishment for purposes of the

legislation and limiting operations only five out of twenty-four hours is not overly

broad. Pinellas County argues the legislation serves a legitimate government interest

in the uniform enforcement of its laws. Next, Pinellas County argues there is no due

process or equal protection violation because there has been no deprivation of a

9

constitutionally protected right as the legislation’s limitations relate to alcohol, not to

expression or association.

Because Bunny’s cannot show a likelihood that it will prevail on the merits,

Pinellas County submits the Court need not consider the remaining three requirements

for injunctive relief. But, even if the Court did find that Bunny’s met its burden of

establishing a likelihood of success on the merits, Pinellas County argues that the

motion still fails because Bunny’s cannot show it will suffer an irreparable injury

because any alleged injury could be compensated via economic means. Further,

Pinellas County contends any threatened injury does not outweigh the harm an

injunction would cause Defendant. Finally, Pinellas County argues that granting an

injunction is adverse to the public who have an interest in uniform enforcement of laws

governing businesses that sell alcohol and insulating communities in the surrounding

area from adult entertainment establishments like Bunny’s.

E. Relevant Ordinances

Sec. 6-26 Definitions

For the purposes of this article, the following definitions of terms shall prevail:

(1) The term "business establishment" shall include any place of business, such as a golf

club, grocery store, drugstore, nightclub, hotel, cafe, bottle club, bar, restaurant,

grill, filling station or location where:

a. One person pays another for an article or product that is mixed with

an alcoholic beverage, or an alcoholic beverage; or

b. A drinking container, drink, water, beverage, or other product or

article, for a consideration of any kind is sold, dispensed, served or

provided, for the purpose of drinking an alcoholic beverage or with

the knowledge, actual or implied, that the same will be, or is intended

to be, mixed, combined with, or drunk in connection or combination

10

with an alcoholic beverage. Any place of business wherein an

alcoholic beverage is carried, stored, dispensed, or consumed by the

owner of the beverage or his guest, or stored or dispensed by the

owner, operator or employee of such place, shall be deemed a

business establishment defined in this paragraph, even if no

consideration is paid directly for the dispensing, serving, or otherwise

providing of such product or article, so long as the establishment

charges any door fee, cover charge, entertainment fee, music fee,

exhibition fee, membership fee, storage fee, or any other indirect

payment device for admission to the premises.

(2) The term "alcoholic beverage" shall include all beverages containing more than one

percent of alcohol by weight.

(3) The term "weekday" shall mean each day of the week except Sunday.

Sec. 6-27 Penalty for violation of article

Any person, firm or corporation, or owner, lessor, partner, operator,

manager, or employee of any business establishment as defined in this article

violating any of the provisions of this article shall be deemed, upon

conviction thereof, guilty of a misdemeanor and shall be punished therefor

as provided by law.

Sec. 6-28 Purpose and Intent

The purpose of this article is to provide uniform regulation of all

establishments and persons in Pinellas County dealing directly or indirectly

with the sale, dispensing or consumption of alcoholic beverages.

Uncertainty and confusion in the applicable laws now exist which have

resulted in evasions of the law and rendered enforcement thereof impossible.

It is the legislative intent that this article apply to all establishments and

persons in any manner dealing with the sale, dispensing or consumption of

alcoholic beverages, that the owners or operators of such establishments

shall be notified hereby that they are not exempted from any zoning and

land use prohibitions and regulations in force in the county unincorporated

area or in the incorporated town or city where such establishments are

located, that owners, operators, employees, patrons and others controlling,

working in, or consuming alcohol on the premises of such establishments

shall be notified hereby of the conduct and activities prohibited by this

article, and the penalties for any violation thereof, and that this article be

liberally construed as to effectuate this purpose.

11

Sec. 6-29 Closing Hours

All business establishments in Pinellas County, licensed or unlicensed,

dealing in alcoholic beverages, public or private, either directly or indirectly,

shall remain closed from the hours of 3:00 a.m. to 8:00 a.m. on each day of

the week unless any municipality in Pinellas County establishes shorter

opening hours as provided in section 6-31 of this article.

II. LEGAL STANDARD

A party seeking entry of a preliminary injunction must establish: (1) a

substantial likelihood of success on the merits; (2) a substantial threat of irreparable

injury if the injunction is not granted; (3) the threatened injury to the moving party

outweighs whatever damage the proposed injunction may cause the opposing party;

and (4) if issued, the injunction would not be adverse to the public interest. Forsyth Cty.

v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (quotations omitted).

“A preliminary injunction is an extraordinary and drastic remedy not to be granted

unless the movant clearly establishes the burden of persuasion as to the four

requisites.” Am. C.L. Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198

(11th Cir. 2009) (citation omitted). The entry of a preliminary injunction is “the

exception rather than the rule, and plaintiff must clearly carry the burden of

persuasion.” Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir. 2000) (quoting Texas v.

Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)).

III. DISCUSSION

Bunny’s seeks injunctive relief, arguing that Section 6-29 is unconstitutional

because the ordinance violates the First Amendment’s right of freedom of expression.

12

As a starting point, the Court must determine whether the First Amendment protects

the conduct at issue in the challenged statute. Bunny’s submits that it desires to present

a message of artistic expression through experimental music to a different audience

who goes out after 3:00 a.m. and the challenged statute precludes that expression.3

Indeed, the Supreme Court has recognized that the First Amendment protection

extends to music, as a form of speech and expression, from governmental censorship

and control. DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1265 (11th Cir. 2007)

(citing Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989)).

The legislation challenged here, however, does not regulate speech or

expression such that it implicates the First Amendment. Section 6-29 is a classic

closing time ordinance governing alcohol, specifically “business establishments in

Pinellas County, licensed or unlicensed, dealing in alcoholic beverages . . . .” Pinellas

County Ordinance 6-29 uniformly requires Pinellas County business establishments

dealing in alcohol, with a few limited exceptions, to close at 3:00 a.m. Although

Bunny’s does not serve alcohol, it has a bottle club license, which means that its

patrons may bring alcohol onto Bunny’s premises to be consumed there. Thus,

Bunny’s, like other Pinellas County business establishments that allow alcohol to be

3 Pinellas County refutes Bunny’s portrayal of itself as a “music venue,” instead arguing that

Bunny’s is primarily a strip club as evidenced by its own social media posts. Doc. 21 at 3. To

the extent that Bunny’s is determined to be an adult entertainment venue, the Eleventh Circuit

has recognized that “[c]ombating the harmful secondary effects of adult businesses, such as

increased crime and neighborhood blight, is a substantial government interest.” Lady J.

Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999) (citing City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 50–52 (1986)).

13

consumed on premises, is required to close at 3:00 a.m. See Arcara v. Cloud Books, Inc.,

478 U.S. 697, 707 (1986) (holding “First Amendment is not implicated by the

enforcement of a public health regulation of general application”).

Bunny’s cites to the Supreme Court’s opinion in 44 Liquormart, Inc. v. Rhode

Island, 116 S. Ct. 1495 (1996), for the proposition that the Twenty-First Amendment

and the government’s right to regulate alcohol does not allow restrictions on First

Amendment rights. Doc. 16 at 14. The challenged statute in 44 Liquormart specifically

sought to control speech related to alcohol, banning advertising retail alcoholic

beverage prices except at the place of sale. Id. at 489. The plaintiff liquor retailer sought

a declaratory judgment that Rhode Island laws banning such advertisement violated

the First Amendment because it did not directly advance the State’s asserted interest

in the promotion of temperance and was more extensive than necessary to serve that

interest. Ruling in favor of the retailer, the Court held Rhode Island’s statutory

prohibition against advertisements that provide the public with accurate information

about retail prices of alcoholic beverages is invalid. Id.

In contrast, the challenged ordinance here does nothing to regulate speech or

expression. Notwithstanding Bunny’s arguments to the contrary, Section 6-29 does

not censor or control musical or creative expression. Significantly, the performers’

ability to express themselves artistically was not precluded at Bunny’s. As testified by

Tanner and Bosques, the performers at Bunny’s were given discretion to present their

creative expression at any time. Whereas other clubs limit the type of music that can

14

be played, Bunny’s prides itself in allowing new performers to express themselves and

try out their music to Bunny’s audience, and the time of day does not affect that artistic

expression. Thus, because the legislation does not implicate the First Amendment,

Bunny’s challenge on this basis fails.

In evaluating a constitutional challenge, courts must determine what type of

scrutiny should be applied in the analysis. The parties agree that the challenged

ordinance is content-neutral legislation to which intermediate scrutiny applies (Doc.

16 at 19; Doc. 21 at 7). Closing time ordinances have been routinely regarded as being

content neutral. See generally Lexra, Inc. v. City of Deerfield Beach, 593 F. App’x 860 (11th

Cir. 2014). “The principal inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner cases in particular, is whether the government

has adopted a regulation of speech because of disagreement with the message it

conveys.” Rock Against Racism, 491 U.S. at 791 (citation omitted). Pinellas County’s

3:00 a.m. closing ordinance is content-neutral because it “applies equally to all, and

not just to those with a particular message or subject matter in mind.” Burk v. Augusta-

Richmond Cnty., 365 F.3d 1247, 1254 (11th Cir. 2004) (citation omitted). “If the

ordinance is a content-neutral time, place, and manner restriction, it is subject to

intermediate scrutiny—that is, it must not restrict speech substantially more than

necessary to further a legitimate government interest, and it must leave open adequate

alternative channels of communication.” Solantic, LLC v. City of Neptune Beach, 410

15

F.3d 1250, 1258 (11th Cir. 2005).4 Thus, a standard of intermediate scrutiny would

apply to the Pinellas County closing ordinance. See City of L.A. v. Almeda Books, 535

U.S. 425, 430 (2002) (internal citations omitted).

In support of the legitimate governmental interest, Pinellas County points to the

ordinance’s stated purpose and a discussion of the legislative history. Regarding

adequate alternative channels of communication, both Tanner and Bosques made

clear, the performers at Bunny’s were permitted to present their artistic expressions

both before and after 3:00 a.m., and thus closing at 3:00 a.m. did not preclude their

musical expressions. And, significantly, the ordinance does not regulate Bunny’s

ability to engage in protected expression or otherwise dictate the type of musical

performers that can play during normal operating hours before 3:00 a.m. Additionally,

for those performers in the service industry who work late hours on the weekends,

there is nothing preventing them from performing other nights of the week, but

Bunny’s chooses to be open only Thursday through Sunday. Lastly, if Bunny’s

operated without a bottle license, it could remain open twenty-four hours and allow

the presentation of musical performances all day and night. Thus, even if the

challenged legislation implicates the First Amendment, the law is narrowly tailored to

4 In contrast, ordinances that are content based are “subject to strict scrutiny, meaning that it

is constitutional only if it constitutes the least restrictive means of advancing a compelling

government interest.” Solantic, 410 F.3d at 1258 (citation omitted).

16

satisfy intermediate scrutiny under the time, place, and manner test. Plaintiff fails to

show a likelihood of success on its First Amendment challenge.

Bunny’s raises several other constitutional challenges to Section 6-29 which the

Court will address in turn below.

A. Adopted without predict or evidentiary support

Bunny’s argues the ordinance is unconstitutional because it was adopted

without legislative predicate. Specifically, Bunny’s submits that Pinellas County failed

to produce relevant evidence that the legislation advances a legitimate government

interest or that Plaintiff’s constitutionally protected expression results in any alleged

adverse or negative secondary effects. Doc. 16 at 17–18. Bunny’s further argues there

has been no showing that the restrictions are reasonable or necessary. The Court

disagrees. As argued by Pinellas County, the ordinance does further a legitimate

government interest in that it supports consistency in the closing times of businesses

dealing in alcoholic beverages. The ordinance’s purpose is set forth in the legislation.

See Pinellas County Ordinance Section 6-28 (“The purpose of this article is to provide

uniform regulation of all establishments and persons in Pinellas County dealing

directly or indirectly with the sale, dispensing or consumption of alcoholic

beverages.”). The need for the uniformity was addressed in County Board Meeting

minutes in which the history behind the uniformity requirement was discussed,

including law enforcement’s concern of preventing inebriated patrons from driving

across County from one bar closure to the next later bar closure. See Doc. 21-9.

17

Although Bunny’s represents that it makes patrons leave or throw out their alcohol at

3:00 a.m., the PCSO body camera footage presented at the evidentiary hearing

revealed the presence of alcohol at Bunny’s after 3:00 a.m. Additionally, Bunny’s

owner acknowledged that if patrons wanted to bring alcohol in, they would find a way.

Bosques also acknowledged the floor guys were not smelling cups to see if they

contained alcohol.5 Thus, despite Bunny’s internal policy that no alcohol was

permitted after 3:00 a.m., the evidence and testimony demonstrate that alcohol was

accessible to Bunny’s patrons after 3:00 a.m. The Court finds that Section 6-29 furthers

a legitimate government interest.

B. Contains terms that are unconstitutionally vague and overly broad

Bunny’s next contends the ordinance is unconstitutionally vague and

overbroad. Bunny’s argues the legislation’s sweeping definition of “Business

Establishment” is unlawful because it subjects businesses to criminal punishment for

selling any item that could be mixed with alcohol between the hour of 3:00 a.m. and

8:00 a.m. Bunny’s argues the ordinance does not further a substantial government

interest and is not narrowly tailored to do so. Doc. 16 at 17–18.

5 The body camera footage captured statements by patrons and the PCSO officers at the scene,

which support the conclusion that alcohol was on the premises after 3:00 a.m. Plaintiff

contends the statements are hearsay. However, the parties stipulated to the admission of the

body camera footage for purposes of the evidentiary hearing. Moreover, in deciding whether

a party has met its burden, “[a] district court may rely on affidavits and hearsay materials

which would not be admissible evidence for a permanent injunction, if the evidence is

appropriate given the character and objectives of the injunctive proceeding.” Levi Strauss & Co.

v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (internal quotations and citation

omitted)

18

Pinellas County responds that the plain language of the legislation is clear that

business establishments dealing in alcohol, with a few exceptions, must close at 3:00

a.m. Regarding the governmental interest, Pinellas County submits that the stated

purpose and intent of the statute is to provide uniformity in enforcement and clear

guidance to law enforcement. As for any claim of overbreadth, Pinellas County argues

that limiting closure to only five hours of a 24-hour day is not overly broad. As noted

by Pinellas County, if Bunny’s ceased allowing alcohol for on-premises consumption,

it could remain open continuously.

A law is impermissibly vague when “it fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits” or “it

authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v.

Colorado, 530 U.S. 703, 732 (2000); see also Jordan v. De George, 341 U.S. 223, 231–32

(1951) (procedural due process requires laws give “sufficiently definite warning as to

the proscribed conduct when measured by common understanding and practices.”).

The ordinance at issue here is directed to business establishments dealing in alcohol

and requires that they close at 3:00 a.m. A person of ordinary intelligence can

understand the ordinance. On this motion, Bunny’s fails to demonstrate otherwise.

Further, the Court agrees that the ordinance is not substantially broader than necessary

to achieve the government’s interest because it only requires Bunny’s to be closed for

a five-hour period of time in a 24-hour day. In considering this factor, “judges are not

policymakers, and the Ordinance will not be struck down simply because a court

19

concludes that the government’s interest could be adequately served by some less-

speech-restrictive alternative.” Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231,

1247 (11th Cir. 2022). Finding Section 6-29’s closure window of time not substantially

broader than necessary, the Court need not engage in a “line-drawing exercise.” See

id. Plaintiff fails to show a substantial likelihood of success on this challenge.

C. Lacks rational relationship to legitimate government interest

Bunny’s constitutional challenge that the ordinance is not rationally related to

any legitimate government interest similarly fails. As stated above, on its face, the

purpose and intent of the ordinance clearly identifies a legitimate government interest

in the uniform enforcement of the County’s laws and to eliminate uncertainty and

confusion in the application of the law.

D. Violates the equal protection and due process clauses

On its equal protection and due process challenges, Bunny’s argues that

violation of the ordinance inappropriately criminalizes the proscribed behavior. To

show a denial of procedural due process requires proof of three elements: “(1) a

deprivation of a constitutionally-protected liberty or property interest; (2) state action;

and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232

(11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). Pinellas

County submits that Bunny’s fails on the first element because there is no deprivation

of a constitutionally protected right. As discussed in more detail above, the Court

agrees. This closing time ordinance governs alcohol, not First Amendment speech or

20

expression. And, as testified to by the witnesses, performers at Bunny’s were not

precluded from presenting their artistic expressions before 3:00 a.m.

Pinellas County further responds that Bunny’s argument about the legislation

imposing criminal sanctions without due process fails because it ignores

Administrative Order No. 2018-068 PI-CTY, which states that the sole and exclusive

penalty for a violation of a local ordinance is a fine and court costs. See Doc. 21-10. As

noted by Pinellas County, the penalty provision of Section 6-27 making a violation of

the ordinance a misdemeanor is confined to a separate subsection which, if necessary,

could be severed. See Doc. 21 at 14 (citing the severability clause of Section 1-7 of the

Pinellas County Code). Considering the Administrative Order’s limitation of penalties

and the severability of Section 6-27, the Court finds Bunny’s arguments of likelihood

of success on the merits of its due process challenge to be unavailing.

IV. CONCLUSION

Plaintiff fails to carry its burden of demonstrating a substantial likelihood of

success on the merits on its constitutional challenges. The failure to establish an

element, such as a substantial likelihood of success on the merits, warrants denial of

the request for preliminary injunctive relief and obviates the need to discuss the

remaining elements. See Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) (citing

Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994)). Accordingly, it is

ORDERED:

21

1. Plaintiff's Motion for Preliminary Injunction (Doc. 16) is DENIED.

DONE AND ORDERED in Tampa, Florida on July 9, 2024.

Chakene Charts Mo TL ol yell

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record

Unrepresented Parties, if any

22